Lend Lease Property Management and Construction Pty Limited, formerly Bovis Lend Lease Pty Limited v National Fire Solutions Pty Ltd [2011] NSWSC 739 (15 July 2011)

Last Updated: 20 July 2011

Supreme Court New South Wales

Case Title:	Lend Lease Property Management and Construction Pty Limited, formerly Bovis Lend Lease Pty Limited v National Fire Solutions Pty Ltd
Medium Neutral Citation:	[2011] NSWSC 739
Hearing Date(s):	15/07/2011
Decision Date:	15 July 2011
Jurisdiction:	Equity Division - Technology and Construction List
Before:	Einstein J
Decision:	1.The application is dismissed. 2.The parties are to pay their own costs of the motion.
Catchwords:	Cross-vesting application
Legislation Cited:	Interpretation Act 1987 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Cases Cited:	Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Limited v Schultz (2004) 221 CLR 400 Eden v Amaca Pty Ltd [2007] VSC 374 Efax Pty Limited v Sonray Capital Markets Pty Limited (in liq) [2011] NSWSC 554 James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357 Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (unreported, 6/8/1997, Supreme Court of New South Wales)
Texts Cited:	Nygh & Davies, in "Conflict of Laws in Australia
Category:	Procedural and other rulings
Parties:	Lend Lease Property Management and Construction Pty Limited, formerly Bovis Lend Lease Pty Limited (Plaintiff) National Fire Solutions Pty Ltd (Defendant)
Representation
- Counsel:	Mr D Talintyre (Plaintiff) Mr MA McDonogh (Defendant)
- Solicitors:	DLA Piper (Plaintiff) Clayton Utz (Defendant)
File number(s):	2011/156195
Publication Restriction:

Judgment

1. There is before the Court an application brought by the applicant/defendant for an order that these proceedings be transferred to the Supreme Court of the Australian Capital Territory.
   
2. The plaintiff's case in general terms is as follows :
   
   • (1) Lend Lease Property Management and Construction Pty Limited ( LLPMC ) and the defendant entered into a contract whereby the defendant agreed to design, supply and install the fire services for a new office tower.
   • (2) Pursuant to that contract, the defendant was obliged to, inter alia, supply, assemble and install various pipe couplings.
   • (3) The defendant failed to properly assemble and install one of those pipe couplings, or the pipe coupling was faulty, resulting in leakage of water into the structure.
   • (4) In failing to properly assemble and install the subject pipe coupling, or supplying a faulty pipe coupling, the defendant breached the contract and was negligent.
   • (5) LLPMC was obliged to rectify the damage caused by the water leak pursuant to its own contractual obligations to the owner of the office tower.
   • (6) LLPMC has suffered loss and damage by reason of the defendant's acts and omissions referred to above.
     
3. Both parties have addressed submissions to the court as to why :
   
   • (1) On the defendant's submissions the orders sought should be made;
   • (2) On the plaintiffs submissions the order sought should be dismissed.
     
4. Whilst the principles which apply in relation to the court's undoubted discretion are reasonably well known a brief rendition of those principles is not out of place.
   
5. I take the sundry principles to involve the following :
   
   • (1) The applicant seeks an order that this proceeding be transferred from this honourable Court to the Supreme Court of the Australian Capital Territory.
     
   • (2) The order is sought pursuant to section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act, 1987 . That subsection provides:

"(2) Where:

(b) it appears to the first court that:

(i) ...

(ii) ...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court."

(3) The criterion for transfer established by section 5(2) is that it is in the interests of justice that the proceeding be determined by the Supreme Court of the ACT.

(4) In Bankinvest AG v Seabroo k (1988) 14 NSWLR 711 at page 714D, [14], Street CJ said that the judicial administration of the day to day working of the cross-vesting scheme calls for what he described as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

(5) Nygh & Davies, in " Conflict of Laws in Australia ", conclude that the approach indicated by the Court of Appeal in Bankinvest will mean that:

"Indeed, it can be said that, other in exceptional cases, courts will transfer proceedings to the court to which that proceeding normally belongs, especially where all the matters raised in the proceeding are within the proper jurisdiction of the other court." [Butterworths, 7 th edition at [6.12]. Cited with approval in Efax Pty Limited v Sonray Capital Markets Pty Limited (in liq) [2011] NSWSC 554 at [60] per Ward J]

(6) In BHP Billiton Limited v Schultz [2004] HCA 61; (2004) 221 CLR 400 Gleeson CJ, McHugh and Heydon JJ stated that under the Cross-Vesting Act , one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.

(7) Gummow J [at [63]] stated that the word "shall" imposes a duty which must be performed [ Interpretation Act 1987 (NSW) section 9(2)]. Thus no question of discretion arises. Furthermore, Gummow J stated that the requirement to order transfer is imperative once the identified criteria "appear" to the Supreme Court [at [62]]. Hayne J agreed with the reasons given by Gummow J [at [177]].

(8) In Schultz Callinan J stated [at [259]] that he would take the expression "natural forum" " to mean in most cases the forum of the jurisdiction in which the tort was committed. It seems to me to be only logical that at least prima facie that forum will be better equipped to deal with the issue. The events have taken place there. Some, if not most of the parties have had, and are likely to continue to have presence there. Proximity to the courts there is likely to lead to both expedition, and savings and expense. But of at least equal importance to all of these is the fact that the events giving rise to the claim were at the time subject to, and regulated by the law of the jurisdiction where they occurred, and in respect of the evaluation of which the court of that place should be most experienced and efficient."

The defendant's case

6. The defendant has contended that in these proceedings there is such a predominance of connecting factors with the ACT that it can be readily identified as the most appropriate, if not be natural for, for the determination of the dispute between the parties.
   
7. The defendant contends that the allegations of negligence and breach of contract made against the defendants are all founded on events that occurred in Canberra. In this regard the defendant contends that these are important matters to take into account.
   
8. Furthermore the defendant has drawn the court's attention to clause 1.2.1 of the relevant contract which states that the laws of the State or Territory in which the Site is located will govern the subcontract and arbitration, litigation or other dispute resolution procedures.
   
9. The defendant has submitted that a consideration of "connecting factors" points clearly to the Supreme Court of the ACT being the natural forum. The contentions of the defendant include that convenience, and expense, availability of the defendant's witnesses and the law governing the resolution of the disputes must be taken into account.
   
10. The defendant has also referred the court to a recent decision by McCallum J in Livestock Transport (Sydney) Pty Ltd v Commonwealth of Australia [2011] NSWSC 283 observing that inconvenience to a large number of witnesses is a compelling consideration in an application such as the present.
    
11. As the plaintiff has observed the moving party on application such as the present bears there is at least a pervasive onus of showing that transfer of the proceedings is appropriate in all the circumstances.
    
12. As the plaintiff has contended the criteria or connecting factors for consideration are reasonably broad. Indeed as the plaintiff has contended there might be significant connecting factors with each of two forums and some may cancel each other out. In each case, taking a practical approach, the particular factors which properly bear on the question must not only be identified, they must be weighed in the balance. It is in the end a nuts and bolts decision.
    
13. I accept that the connecting factors commonly considered, of varying relevance in these proceedings, include the following:
    
    • (1) The place or places where the parties and/or witness reside or carry on business;
    • (2) The location of the subject matter of the dispute;
    • (3) The importance of local knowledge to the resolution of the issues;
    • (4) The law governing the relevant transaction, especially if the matter involves the construction of State legislation [Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233] ;
    • (5) The procedures available in the different courts;
    • (6) The likely hearing dates in the different courts;
    • (7) Whether it is sought to transfer the proceedings to a specialised court;
    • (8) An exclusive jurisdiction clause nominating the courts of a particular State for the resolution of disputes [West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (unreported, 6/8/1997, Supreme Court of New South Wales).
      
14. Each of the plaintiff's following submissions are of substance :
    
    • (1) Essentially, LLPMC's case is that the water leakage and resulting damage was caused by the incorrect assembly and installation of the pipe coupling by NFS.
      

The Subcontract

(2) The Subcontract executed by LLPMC and NFS was the National Standard Subcontract Terms and Schedules of February 2005 (Rev AA). It is dated 12 April 2006 (" the Subcontract").

(3) Clause 1.1 of the Subcontract contains the following definitions:

"Client" means the other party or parties with BLL to the Head Contract named in the Appendix (i.e. QIC).

"Head Contract " means the agreement, arrangement or understanding with the Client under which BLL will execute certain work and of which the Works form part.

"Site " means the land, buildings or other places made and to be made available to BLL by the Client for the purposes of the Head Contract and any other land, buildings or places which BLL advises the Subcontractor form part of the Site.

(4) The " Site " is located in the Australian Capital Territory. Clause 1.2 of the Subcontract deals with Interpretation. Clause 1.2.1 provides that " the laws of the State or Territory in which the Site is located will govern the Subcontract and arbitration, litigation or other dispute resolution procedures. "

(5) Part 13 of the Subcontract deals with Settlement of Disputes. In particular Clause 13.2 provides that in the circumstances of the present case, " either party may refer [the] dispute to any court of competent jurisdiction. "

(6) Section 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (" JOCA ") relevantly provides as follows:

2. Where:

(a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court (in this subsection referred to as the first court ), and
(b) it appears to the first court that:

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory,

the first court shall transfer the relevant proceeding to that other Supreme Court.

(7) The Court has no power to transfer proceedings unless it is satisfied that the " interests of justice " render another court a more appropriate forum. The "interests of justice " concern those of both parties and should be judged by objective factors. The moving party bears at least a persuasive onus of showing that transfer of the proceedings is appropriate in all the circumstances [ James Hardie & Co Pty Ltd v Barry [2000] NSWCA 353; (2000) 50 NSWLR 357; Eden v Amaca Pty Ltd [2007] VSC 374].

(8) There may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other. The advantage which a defendant might obtain from proceeding in one court might be matched by a corresponding and commensurate disadvantage to the plaintiff. The reason why a plaintiff commenced proceedings in one court might be the same reason why the defendant seeks to have them transferred to another court. In such a case, justice may not dictate a preference for the interests of either party [BHP Billiton v Schultz (2004) 221 CLR 400 [14]-[19]].

(9) The criteria or " connecting factors " for consideration are broad and have been described as " legion "; making them incapable of being corralled into a convenient and definitive list and may even elude demarcation by categories. There might be significant connecting factors with each of two different forums and some may cancel each other out [ Ibid; see also Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 at 465]. In each case, taking a practical approach, the particular factors which properly bear on the question must not only be identified, they must also be weighed in the balance. It is, in the end, a " nuts and bolts decision " [Ibid [13]; see also Bankinvest v Seabrook (1988) 14 NSWLR 711 at 713-714].

(10) The connecting factors commonly considered, of varying relevance in these proceedings, include the following:

• (a) The place or places where the parties and/or witness reside or carry on business;
• (b) The location of the subject matter of the dispute;
• (c) The importance of local knowledge to the resolution of the issues;
• (d) The law governing the relevant transaction, especially if the matter involves the construction of State legislation [Australian Consolidated Investments Ltd v Westpac Banking Corporation (1991) 5 ACSR 233];
• (e) The procedures available in the different courts;
• (f) The likely hearing dates in the different courts;
• (g) Whether it is sought to transfer the proceedings to a specialised court;
• (h) An exclusive jurisdiction clause nominating the courts of a particular State for the resolution of disputes [West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd ( unrep, 6/8/97, NSWSC)].
  

(11) Section 4 of JOCA (ACT) confers an absolute right on BLL to commence proceedings in NSW. NFS has a persuasive onus to satisfy the criteria in section 5 of JOCA. Unless the Court is reasonably satisfied that it is in the interests of justice that the Supreme Court of the ACT should hear and determine LLPMC's case, the Court has no power to transfer the proceeding to the ACT.

(12) Both parties are resident in NSW. LLPMC is resident in Sydney and carries on business in NSW. Its principal place of business is Sydney. NFS is resident in Queanbeyan and carries on business in the ACT and NSW. There is a real and substantial connection between both parties and this jurisdiction.

(13) Despite invitation by LLPMC, NFS has refused to file a List Response before the hearing of this application. Consequently, the precise issues for determination at trial have not yet crystallised and the witnesses to be called in relation to those issues cannot be identified with any certainty.

(14) Despite invitation by LLPMC, the affidavits relied upon by NFS are also silent as to what NFS's case will be and why the nominated witnesses may be required. It is noteworthy that NFS has failed to identify which witness installed the subject pipe coupling. The "roles" of the witnesses identified by NFS go only to "post-leak" events, which are unlikely to be controversial - it is doubtful that any cross-examination as to such events will be required. The relevant facts are of a limited scope and most witnesses nominated by NFS are probably irrelevant to the real issues likely to be in dispute or will merely duplicate each other's evidence as to matters that do not require corroboration.

(15) No mediation has yet been conducted, which may have the potential to resolve or at least narrow the issues in dispute and consequently limit the number, nature and identity of the witnesses to be called.

(16) The primary issue in these proceedings is likely to be causation. This will involve an enquiry into and determination of the technical reasons for the failure of the subject pipe coupling. Consequently, the principal witnesses will be experts, at least one of which resides in Sydney. With respect to quantum, LLPMC's expert loss adjuster is also resident in Sydney.

(17) No attempt has been made by NFS to estimate how long each witness is likely to occupy court time in the course of any trial. That time will be shortened by the likelihood that statements of their evidence in chief will be exchanged before trial (and probably before mediation). Any subsequent cross-examination of factual witnesses called by NFS is likely to be short in duration. This dispute does not involve complex, numerous or lengthy dealings between the parties.

(18) As their evidence is likely to be short, any witnesses still resident in the ACT may conveniently travel to Sydney if required for cross-examination without the need to be accommodated overnight. Alternatively, such witnesses can give evidence by video link, which will dispense with the cost and inconvenience of travelling from the ACT. In any event, it is no longer an onerous task or as expensive for witnesses to travel from the ACT to Sydney as was the case many years ago.

(19) NFS's solicitors have a large Sydney office and are well resourced to video conference with witnesses located remotely. This will significantly reduce the need to undertake travel between the ACT and Sydney. Alternatively, NFS's solicitors in the ACT may retain carriage of the matter, confer locally with any ACT witnesses and instruct their Sydney office to attend Court for any interlocutory steps necessary in the proceedings.

(20) Whether the trial of the matter is held in Sydney or Canberra, the representatives of one of the parties will have to travel from either Sydney or Canberra to attend. Accordingly, this connecting factor cancels itself out. Similarly, LLPMC has been represented by solicitors in Sydney since 2008, which cancels out NFS's representation by Canberra solicitors for the same period. LLPMC has had a Sydney based barrister briefed in the matter since December 2009.

(21) Although the location of the subject matter of the dispute may superficially appear to be the ACT, in fact it is the failed pipe coupling, which is easily transportable. A view of the building is not a necessary or likely step in the proceedings. The pipe coupling has been removed and all damage to the building has been rectified. NFS has not adduced any evidence that indicates any tribunal would benefit from an inspection of the pipe coupling's location - on the contrary, NFS has asserted that it is impossible to install the pipe coupling incorrectly, presumably no matter where it is located.

(22) There is no important local knowledge. The pipe coupling is of a generic type, widely used worldwide in fire service and other applications. There is no evidence from NFS to suggest that local knowledge is a relevant consideration.

(23) Pursuant to clause 1.2 of the Subcontract, the law of the ACT will govern the Subcontract and any dispute arising from it. NFS has not identified any law of the ACT which is any different to that which applies in NSW, pursuant to which the Subcontract is governed or to which the issues likely to be in dispute are to be determined. There is unlikely to be any need to consider the construction of ACT legislation or regulations.

(24) The procedures and likely hearing dates of the ACT do not significantly affect the choice of jurisdiction. There is no evidence from NFS to the contrary.

(25) NFS does not seek to transfer these proceedings to a specialised court. A specialised court already exists in the list in which these proceedings have been commenced, which is specifically designed to case manage and hear disputes of this nature. This Court has the capacity to deal expeditiously with the proceedings, which is relevant to the interests of justice to be considered.

(26) The Subcontract contains an exclusive jurisdiction clause 1.2 however the impact of that clause is diluted by the lack of particularity in the dispute resolution clause 13.2. By virtue of JOCA (ACT), the Supreme Court of NSW is a court of competent jurisdiction for the purposes of clause 13.2.

15. In all of the circumstances I am of the view that the application requires to be dismissed.
    
16. The principled exercise of the relevant discretion is for the parties to pay their own costs of the motion.
    

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